In re Carragher | Cases | Westlaw

The appellant, a woman and registered pharmacist resident of Floyd county and citizen of the United States and state of Iowa, made application in due form to the district court for a permit to buy, keep and sell intoxicating liquors for lawful purposes under the laws of the state. To said application an appearance was entered by the county attorney, who raised the issue that by the provisions of section 1, c. 143, of the Acts of the Thirty–Third General Assembly, the applicant was not qualified to receive a permit. The objection was sustained by the trial court, the application dismissed, and the applicant appeals.

The statute in question is entitled “An act to prohibit any person except a qualified *353 elector from engaging in the sale of intoxicating liquors at retail. * * * (Additional to chapter six of title twelve of the Code, relating to intoxicating liquors.) Section 1. No one except a qualified elector of the town, city or township in which the business is conducted or carried on shall engage in the sale of intoxicating liquors at retail.”

Assuming the validity of this legislation, the primary question before us is whether the applicant, a woman, is or can be considered a qualified elector of the city of which she is a resident citizen. Stated otherwise, the inquiry is whether the applicant is by reason of her sex disqualified from receiving and holding a pharmacist's permit for the sale of liquors. That she is not an elector in the general sense that she is entitled to vote at all general and municipal elections is conceded; but it is said that she is qualified to vote at city, town, or school district elections upon the matter of proposed bond issues and other financial or tax measures, and she is therefore an elector, at least in a restricted meaning of the term, and, as the statute provides for no distinction between electors in prescribing the qualifications of an applicant, she is qualified to hold a permit. If it were within the constitutional power of the Legislature to prescribe the qualifications of an elector, the argument on behalf of the appellant would be quite persuasive. But the essentials of a qualified elector are fixed by the Constitution of the state as follows: Article 2, § 1: Every male citizen of the United States of the age of 21 years, who shall have been a resident of the state 6 months next preceding the election, and of the county in which he claims his vote 60 days, shall be entitled to vote at all elections which are now, or hereafter may be, authorized by law. The Legislature cannot add to or take from these qualifications, and until the people shall have changed this feature of their fundamental law a woman cannot be a qualified elector in the constitutional sense of the term. See Coggeshall v. Des Moines, 138 Iowa, 736, 117 N. W. 309, where this subject is fully considered and many of the authorities collated. This is not inconsistent with legislative power to authorize women to vote on questions of public policy or administration submitted to the popular vote but not including the election or choice of officers. Coggeshall v. Des Moines, supra. Woman may be a voter upon questions of this nature, but without ignoring the constitutional restrictions she cannot be made a qualified elector. But counsel say that, even conceding this point, keeping and dealing in intoxicating liquors for lawful purposes cannot be said to be engaging in the sale of such liquors “at retail,” and that the real purpose and intent of the act is to regulate the sale of liquors under the protection of the mulct statute. Were we to look alone to some matters of common repute and general discussion at or about the time this chapter was added to the statute, we might readily agree with counsel in his conclusion; but the language employed is entirely too broad and sweeping to permit us to indulge in that construction. In the first place, we think it must be said that the pharmacist doing business under a liquor permit is a retailer of liquors. He buys in quantities and sells in lesser quantities precisely as other merchants do or as he retails other drugs or articles of which his stock is composed, save only as the business is restricted or regulated by statute. Again, the title to the act does not express any purpose to restrict its effect to dealers under the mulct law, but declares it to be amendatory or additional to that chapter 6 of title 12 of the Code, which chapter treats both the matters of sales by pharmacists and sales by mulct dealers. When, therefore, it provides that no one but a qualified elector shall engage in retailing such liquors, and makes the provisions additional to this general chapter, it would be an undue stretch of judicial authority for us to say that it applies to the one class only and not to the other.

Finally, it is argued that, if the statute is to be construed as we have here indicated, it should be held void as violating our constitutional provisions for the uniform operation of the laws and against the grant to any citizen or class of citizens of special or exclusive immunities or privileges. We think the facts do not involve any invasion of the appellant's constitutional rights in this respect. The business of dealing in intoxicants is peculiarly within the control of the state. It may prohibit the traffic in its entirety. It may permit sales for specified purposes only. It may prescribe the qualifications of the persons to whom the right to sell is granted, and the fact that a permit is given to one person or class of persons neither works nor implies the denial of any constitutional right to the person or class of persons to whom it is refused. Registered pharmacists as a class are probably no better qualified to safely keep and sell liquors than are physicians as a class or many other persons engaged in other lines of human employment, yet counsel would scarcely contend that the granting of permits to pharmacists only is an unconstitutional discrimination against physicians or grocers. It will not be denied that, while a woman may be a competent pharmacist, and as such be capable and worthy to receive a permit, yet the law could not permit the sex to engage in the retail liquor traffic generally without serious injury to public morals, and, if in guarding against this evil the statutory prohibition is made so broad and general as to here and there prevent a worthy woman from enjoying a privilege which she would not abuse, it is but an illustration of the impossibility of enacting a general rule which does not bear with unequal weight upon some of the persons affected by it. We think it competent *354 for the Legislature to act upon the theory that as a rule retail dealing in intoxicants by women is opposed to sound public policy, and that so long as the state chooses to exercise its right to regulate the traffic and minimize its admitted evils it may constitutionally deny permits to members of that sex. Counsel calls to our attention no authority or precedent which goes to the extent of his contention in argument, and we know of none. This discrimination of which he complains is neither unreasonable nor oppressive. Of the soundness of the proposition, in support of which many cases are cited, that to be constitutional a law must operate alike “on all persons who are or who may be in like situation, and the classification must be natural and reasonable and not arbitrary and capricious,” there can be no question; but in our view it will not sustain this appeal. The discrimination between the sexes is neither arbitrary nor capricious, and the fact that in many instances individuals of one sex are in general better fitted than those of the other sex for a given occupation or business is one of such common knowledge and observation that the Legislature may properly recognize it in enacting regulations therefor. In State v. Muller, 48 Or. 252, 85 Pac. 855, 120 Am. St. Rep. 805, and in the note thereto, the question of distinction or classification according to sex is very fully considered, and, though the case there treated is not parallel to the one at bar, the principles discussed and applied are not to be overlooked in disposing of this appeal.

There was no error in the ruling of the trial court, and it is affirmed.